Specific performance (in Italian: azione di adempimento) is one of the remedies under Italian law available to the creditor following a breach of contract. Indeed, in certain cases the creditor might be interested in receiving specific performance of the breached obligation instead of terminating the contract.
This third part of the series dedicated on the remedies for breach of contract focuses on specific performance under Italian law and will cover:
The scope of specific performance under Italian law
The scope of specific performance under Italian law
Specific performance is one of the general remedies offered (i.e., remedies that are available for all types of contracts) to the creditor for breach of an Italian law contract. It allows the innocent party to obtain, if still possible, the benefit that was originally promised by the defendant.
It is regarded to be a conservative remedy as it aims at rebalancing the contractual relationship between the parties and preventing the contract from being terminated.
This remedy is available to the claimant to protect his interests following a breach of contract and therefore is not dependent on the occurrence of a loss. As a matter of fact, the creditor can choose the remedy that he or she considers to be the most appropriate or effective for achieving the intended objective. It is important to point out that the Italian Civil Code specifies that damages can also be requested in addition to the remedy of specific performance, hence offering the creditor a comprehensive protection of the interests involved.
Requirements for specific performance under Italian law
The claimant can obtain an order for specific performance by the Italian courts only if the contractual obligation can still be performed by the defendant. If the defendant cannot perform the original obligation, the only possible option will be to terminate the contract and request compensation for any loss suffered.
When requesting specific performance, the claimant must only prove the existence of the contract between the parties and is not obliged to prove that the defendant is in breach. In this case the burden of proof lies with the defendant who should be able to prove that the obligation was performed as promised.
Compared to the other types of remedies, the Italian Civil Code does not go in too much detail when it comes to regulating specific performance. To this regard, Article 1453 (2) of the Italian Civil Code only specifies that the claimant
cannot request the specific performance if he has filed to terminate the contract.
Therefore, if the claimant intends to receive specific performance, the request should be made at the beginning of the the judicial proceeding as it will be not possible to change afterwards. However, in accordance with the case-law on this subject, an exception is made if the claimant did initially file for specific performance. In this case, the courts will allow the claimant to change the initial request and ask for the termination of the contract.
Some exceptions to specific performance
Although a general remedy, specific performance is not always applicable or is subject to limitations for certain contractual obligations. These exceptions have been introduced either directly by the Legislator or by way of interpretation by the Italian courts.
Italian courts have excluded the application of specific performance for sale of goods contracts if the breach is related to the quality of the goods delivered. In accordance with a well-established case law, in a sale of goods contract governed by Italian law the buyer can either terminate the contract or claim a price reduction (Article 1492 Italian Civil Code). As these are the only remedies granted by the law to the buyer, a court will not issue an order for specific performance unless there has been an express commitment of the seller to that effect.
Another example where specific performance is excluded, this time explicitly introduced by the Italian Legislator, is related to the sale of consumer goods (Article 130 of the Italian Consumer Code).
Concerning the sale of consumer goods, specific performance is regarded by the Italian Consumer Code as one of the primary remedies available to the consumer if the goods delivered lack of conformity with the contract.
However, this remedy is not without limitations. Indeed, if specific performance is impossible or it could cause excessive hardship to the seller, the buyer is left with the alternative remedies of price reduction and termination.
